Smith v. Catamaran Health Solutions LLC et al
Filing
28
ORDER granting 13 Motion to Dismiss for Failure to State a Claim; granting 13 Motion to Dismiss for Lack of Jurisdiction. Signed by Honorable Bruce Howe Hendricks on 9/1/16.(alew, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
SHAREN SMITH, on behalf of herself and )
all others similarly situated,
)
)
Plaintiffs, )
vs.
)
)
CATAMARAN HEALTH SOLUTIONS,
)
LLC, f/k/a CATALYST HEALTH
)
SOLUTIONS, INC., f/k/a
)
HEALTHEXTRAS, INC., and
)
STONEBRIDGE LIFE INSURANCE
)
COMPANY,
)
)
)
Defendants. )
__________________________________ )
Civil Action No.: 3:15-2846-BHH
Opinion and Order
This matter is before the Court on Defendants’ Catamaran Health Solutions, LLC,
f/k/a Catalyst Health Solutions, Inc., f/k/a HealthExtras, Inc. (“Catamaran Defendants” or
“HealthExtras”)1 and Stonebridge Life Insurance Company (“Stonebridge”) Motion to
Dismiss (ECF No. 13) Plaintiff Sharen Smith’s Class Action Complaint (ECF No. 1) for
lack of standing and failure to state a plausible claim for relief, pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth in this Order,
Defendants’ Motion is granted and the case is dismissed.
STATEMENT OF THE CASE
On July 20, 2015, Plaintiff Sharen Smith, a resident of South Carolina, filed a
complaint on behalf of herself and all similarly situated South Carolina residents
concerning allegedly fraudulent insurance practices. Plaintiff asserted claims against the
1
The Court sometimes uses “HealthExtras” as a short title to refer to these Defendants collectively
because that was the trade name utilized in conjunction with the insurance policies in question at all times
relevant to the Complaint.
1
architect of the alleged fraudulent insurance scheme (Catamaran, f/k/a Catalyst, f/k/a
HealthExtras) and an underwriter (Stonebridge) which lent its name to the architect in
order to facilitate solicitation of customers in South Carolina. Plaintiff invoked this
Court’s subject matter jurisdiction under the Class Action Fairness Act, 28 U.S.C. §
1332(d), alleging a class of more than 100 members and an aggregate amount in
controversy in excess of $5,000,000.00.
Plaintiff alleged that the Defendants engaged in a pattern of wrongful conduct
toward herself and others similarly situated in the State of South Carolina, including but
not limited to the following: (a) the illegal selling and underwriting of blanket group
insurance to consumers who were not members of any lawful, blanket group for which
the sale of such an insurance product could be authorized; (b) the false and deceptive
advertising, solicitation, sale, and post-sale marketing of disability insurance that is
illegal under South Carolina law; (c) the creation of fictitious groups in which to place
this insurance for the purpose of avoiding state insurance regulations and laws; (d) the
calculation and collection of excessive premiums or fees charged for this illegal
insurance product; (e) conspiracy among the defendants to create a sham organization
operating under the name HealthExtras for the purpose of avoiding the State of South
Carolina’s insurance regulations and laws; (f) conspiracy among the defendants to
create a sham organization operating under the name HealthExtras for the purpose of
charging excessive illegal premiums for a virtually worthless disability insurance
product; (g) conspiracy among the defendants to create a sham organization operating
under the name HealthExtras for the purpose of concealing from the public and the
State of South Carolina the true nature of the sham organization known as
2
HealthExtras; (h) unjust enrichment; (i) breach of contract; (j) breach of contract
accompanied by a fraudulent act; (k) breach of the duty of good faith and fair dealing; (l)
violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”), S.C. Code § 395-10, et seq.; and, (m) violation of the Racketeering Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. (Compl., ECF No. 1 ¶¶ 19, 10376.)
Litigation against HealthExtras, its successors, affiliated entities, and related
underwriters regarding similar and/or substantially identical insurance policies to those
at issue in the case sub judice is prolific. Plaintiffs’ counsel have filed several related
putative class actions in various jurisdictions, making similar and/or identical claims:
Campbell v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, et al., No. 1:14-cv-00892-RC
(D.D.C.); Giercyk v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, et al., No. 2:13-cv06272-MCA-MAH (D.N.J.); Gonzales v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No.
15-cv-02259 (S.D.N.Y.); Graham v. Catamaran Health Solutions, et al., No. 4:14-cv-589
(E.D. Ark.), on appeal No. 16-1161 (8th Cir.); Johnson v. Catamaran Health Solutions,
LLC, No. 15-cv-61752-RNS (S.D. Fla.), on appeal No. 16-11735 (11th Cir.); Patel v.
Catamaran Health Solutions, LLC, No. 15-cv-61891-BB (S.D. Fla.), on appeal No.
16-10613 (11th Cir.); Petruzzo v. HealthExtras, Inc., et al., No. 5:12-cv-00113
(E.D.N.C.), on appeal No. 15-1673; Waiserman v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 2:14-cv-667 (C.D. Cal.), on appeal No. 14-56813 (9th Cir.); Watson v.
Nat’l Union Fire Ins. Co. of Pittsburgh, PA, et al., No. 2:14-cv-01312 (E.D. La.); Williams
v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, et al., No. 1:14-cv-00309-MHS (N.D.
Ga.), on appeal No. 16-11302 (11th Cir.); Williams v. Nat’l Union Fire Ins. Co. of
3
Pittsburgh, PA, et al., No. 6:14-cv-00870-BHH (D.S.C.). This Court also presides over
the South Carolina Williams case, which is currently stayed pending finalization of the
terms of the parties’ settlement agreement. (See No. 6:14-cv-00870-BHH, ECF Nos.
131, 133.)
On September 21, 2015, Defendants filed the instant Motion to Dismiss (ECF No.
13), arguing that Plaintiff lacks standing to sue because she has not suffered an injury in
fact and the case should therefore be dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1). Defendants further argue that even if Plaintiff has standing, she
has not set forth factual allegations that, accepted as true, are sufficient to show she is
entitled to relief and her claims should be dismissed under Rule 12(b)(6). Plaintiff filed a
Response on October 8, 2015 (ECF No. 17), and Defendants filed a Reply on October
19, 2015 (ECF No. 18). Additionally, between December 2015 and February 2016
Defendants filed three Notices of Supplemental Authority (ECF Nos. 22, 23, 24),
appraising the Court of relevant rulings in some of the related cases listed above. On
May 5, 2016, Plaintiff filed a Notice of Settlement as to Defendant Catamaran (i.e.
HealthExtras), but indicated that Plaintiff has not reached a settlement with the
remaining Defendant, Stonebridge Life Insurance Company. The Court has thoroughly
reviewed the parties’ submissions and the relevant legal authority, and now issues the
following ruling.
BACKGROUND
The following facts are drawn from Plaintiff’s Class Action Complaint
(“Complaint”). This case involves allegations that Defendants engaged in the fraudulent
advertising, marketing, and sale of “group” disability insurance (“the Policy”) to South
4
Carolina residents who were not members of any group for which such an insurance
product was authorized, and thus the policies were illegal. Plaintiff, Sharen Smith
(“Plaintiff” or “Smith”), purchased one of the policies. Plaintiff claims that the policy she
purchased was the same “HealthExtras Benefit Program” under the same alleged
HealthExtras scheme as the plaintiffs in the Williams matter, No. 6:14-cv-00870-BHH,
with the only difference being that the One Million Dollar ($1,000,000.00) lump sum
Accident Permanent and Total Disability Benefit is underwritten by Defendant
Stonebridge rather than National Union Fire Insurance of Pittsburgh, PA (one of the
defendants in Williams). (ECF No. 1 ¶ 1.) Smith never made a claim against the Policy
and is seeking to represent a class of purchasers in a similar position. (See id. ¶ 28
(class definition).) Indeed, the proposed class specifically excludes, inter alia, any policy
holder for whom an actual identifiable claim for disability benefits has arisen that may be
payable under the terms of the Policy. (Id.) Plaintiff further alleges that Defendants knew
that the products they were selling were illegal and that the coverage promised by the
policies was illusory because there was no intention to pay claims under that purported
coverage. (Id. ¶¶ 82-83.)
The Alleged Scheme
Plaintiff claims that Defendants sent advertising materials to people through a
partnership with major credit card companies and banks. (Id. ¶ 38.) Defendants’
advertisements featured the late Superman actor, Christopher Reeve, who famously
became a quadriplegic after falling from a horse, along with Mr. Reeve’s statements
endorsing the HealthExtras Benefit Program. (Id. ¶¶ 34, 38, 45, 81.)
The marketing flyers offered (1) a One Million Dollar ($1,000,000.00) Accidental
5
Permanent and Total Disability Benefit insurance product, and (2) an Out of Area
Emergency Accident and Sickness Medical Expense Benefit that purported to cover up
to Two Thousand Five Hundred ($2,500.00) in medical expense in the event of an
accident or sickness while away from home (“HealthExtras Benefit Program”) “for as
little as Nine Dollars and Ninety-Five cents ($9.95) per month or Fifteen Dollars and
Ninety cents ($15.90) per month depending on whether the individual added his or her
spouse.” (Id. ¶¶ 1, 38(d).) Plaintiff claims that, in reality, the insurance she was sold was
effectively worthless because of a series of harsh and confusing exclusions that
conflicted with what was represented in the marketing materials. (Id. ¶ 74.) The
marketing materials contained statements such as,
“This program provides valuable protection in the event you become
permanently totally disabled due to an accident” and
“You’re covered with a $1,000,000 tax-free cash payment if you are
permanently disabled as a result of an accident”
(Id. ¶ 73). However, Plaintiff avers that Catamaran and Stonebridge: (1) conspired to
develop policy language and exclusions that would prevent policy holders from
collecting on valid disability claims (Id. ¶¶ 75, 78); (2) that they had no intent to ever pay
disability claims; and (3) that they had the specific intent to deny any disability claims
made by victims of the HealthExtras scheme (Id. ¶¶ 76, 77).
Plaintiff further claims that only a small fraction of the premiums paid by
members of the HealthExtras Benefit Program went to an insurance company to
actually provide insurance coverage. (Id. ¶¶ 50, 70, 173.) The rest of the funds, Plaintiff
avers, went to HealthExtras entities and its marketing partners rather than being used
6
for coverage or any purpose that would benefit Plaintiff or the putative class members.2
(Id.)
Plaintiff alleges that Defendants facilitated the sale of these questionable
insurance policies by fraudulently circumventing regulatory supervision and scrutiny
established by South Carolina law that is intended to prevent such abuse. (Id. ¶¶ 41,
65.) According to Plaintiff, South Carolina law requires blanket group disability
insurance to be marketed and sold to an employer or to a group that has been
organized and is maintained in good faith for purposes other than that of obtaining
insurance. (Id. ¶ 37.) The purpose of the rule is to allow the group, as the entity with the
insurable interest in its members, to scrutinize the terms of coverage and price of
coverage to ensure its members are receiving a good insurance product for a fair price.
(Id.) Plaintiff avers that in order to get around this limitation, Defendants designated their
policy holders as “members” of a fictitious “group” and deposited their premiums into an
account held under the name of the fictitious group or a bogus “trust,” before distributing
them to Defendants for their profit. (Id. ¶¶ 37, 38, 57.) As the complaint alleges:
Despite statutory requirements and specific knowledge that a group of
credit card holders were not a valid group for purposes of blanket or group
accident polices, in an extraordinary display of self-dealing, Defendants
Stonebridge, Catamaran, and others created a fictitious group and issued
the policies to HealthExtras, Inc. as the “Policyholder.” HealthExtras, Inc.
was not an employer, or any other organization as defined under S.C.
Code Ann. § 38-71-730. HealthExtras Inc. was not a group or association
at all. HealthExtras, now Catamaran, was a fictitious, illegal and sham
company, with premiums collected for the benefit of it and its business
partners, rather than a valid group of persons. There was no constitution
or bylaws and the HealthExtras “members” had no voting privileges or
2
The Court would note that Plaintiff has not pled this theory with any specific facts, but only “upon
information and belief.” Unlike the plaintiff’s complaint in Williams, the Complaint here does not include
dollar amounts or percentages detailing the portion of premiums that went to HealthExtras, which is not a
licensed insurer, and what portion went to Stonebridge, the purported underwriter of the risk in the
disability policy. (Compare ECF No. 1 ¶¶ 50, 70, 173; with No. 6:14-cv-00870-BHH, ECF No. 1 ¶ 90.)
7
representation on any boards or committees. This group was created for
the sole purpose of selling the HealthExtras Scheme to consumers, while
avoiding supervision and oversight of the South Carolina Department of
Insurance in direct violation of South Carolina law.
(Id. ¶ 61.) Furthermore, because the insurance was a “group policy,” the “group” formed
by Defendants was the actual holder of the policy and those who purchased coverage
were not given a copy of the master policy, but rather a Certificate of Insurance that
summarized the coverage terms and explained the individual’s rights under the master
policy. (Id. ¶ 52.)
Plaintiff asserts that the insurer(s) who were contracted to underwrite the benefits
either misrepresented to the state insurance regulators that the Policy was intended to
be issued to a valid group under state law or intentionally failed to apply for approval.
(Id. ¶ 38(h)-(i).) Consequently, the Catamaran Defendants reaped massive profits with
their revenues increasing from $5.3 million in 1999 to $44.2 million in 2000. (Id. ¶ 40.) In
addition, avers Plaintiff, the HealthExtras scheme resulted in a huge windfall for
HealthExtras, Inc. and CEO David Blair; specifically, after HealthExtras Inc. and its
successor corporation Catalyst Health Solutions were sold for $4.4 billion to SXC Health
Solutions in July 2012, creating the company now known as Catamaran Health
Solutions, LLC, Mr. Blair received a $16 million compensation package in 2012, which
followed his earnings of $9.4 million in 2011. (Id. ¶ 42.) Plaintiff alleges that Stonebridge
essentially sold its name and insurance license to the Catamaran Defendants (none of
which were licensed to conduct the business of insurance in South Carolina) for use in
the scheme, with specific knowledge that the insurance program was illegal. (Id. ¶¶ 8696.) As noted, the policies were marketed through a partnership between the
Catamaran Defendants and major credit card companies and banks, and the payments
8
for the policies were automatically deducted from the card or account holder’s account
on a monthly or yearly basis. (Id. ¶ 38.)
STANDARD OF REVIEW
Subject Matter Jurisdiction
Article III of the U.S. Constitution limits the jurisdiction of federal courts to
deciding only actual “cases” and “controversies.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-60 (1992). One benchmark that sets apart those “cases” and
“controversies” that are of the justiciable sort is the doctrine of standing, which has been
held to be an “essential and unchanging part of the case-or-controversy requirement.”
Id. at 560. “[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has
suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and 3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan, 504 U.S. at
56-61); Friends for Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 320 (4th Cir. 2002)).
An injury in fact is “an invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504
U.S. at 560; Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013). The party invoking
federal jurisdiction has the burden of establishing all three elements of standing. Lujan,
504 U.S. at 561; Cooksey, 721 F.3d at 234.
A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges
the court’s subject matter jurisdiction, and the plaintiff bears the burden of showing that
9
federal jurisdiction is appropriate when challenged by the defendant. McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (“[The plaintiff] must allege in his
pleading the facts essential to show jurisdiction. If he fails to make the necessary
allegations he has no standing.”); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
A motion to dismiss for lack of subject matter jurisdiction may either (1) assert that the
complaint fails to allege facts upon which subject matter jurisdiction can be based, or (2)
contest the jurisdictional allegations of the complaint themselves. Adams, 697 F.2d at
1219. In the first scenario, which is the challenge in the case sub judice, “the plaintiff, in
effect, is afforded the same procedural protection as he would receive under a Rule
12(b)(6) consideration.” Id. Thus, “the facts alleged in the complaint are taken as true,
and the motion must be denied if the complaint alleges sufficient facts to invoke subject
matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
Failure To State A Claim Upon Which Relief Can Be Granted
A plaintiff’s complaint should set forth “a short and plain statement . . . showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Twombly, 550 U.S. at 556)). In considering a motion to dismiss under Fed. R.
10
Civ. P. 12(b)(6), a court “accepts all well-pled facts as true and construes these facts in
the
light
most
favorable
to
the
plaintiff
. . . .”
Nemet
Chevrolet,
Ltd.
v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). A court should grant a
Rule 12(b)(6) motion if, “after accepting all well-pleaded allegations in the plaintiff’s
complaint as true and drawing all reasonable factual inferences from those facts in the
plaintiff’s favor, it appears certain that the plaintiff cannot prove any set of facts in
support of his claim entitling him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999).
As previously noted, to survive a Rule 12(b)(6) motion to dismiss a complaint
must state “a plausible claim for relief.” Iqbal, 556 U.S. at 679 (emphasis added). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S.
at 557). Stated differently, “where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)). Still, Rule 12(b)(6) “does not countenance . . . dismissals based on a judge’s
disbelief of a complaint’s factual allegations.” Colon Health Centers of Am., LLC v.
Hazel, 733 F.3d 535, 545 (4th Cir. 2013) (quoting Neitzke v. Williams, 490 U.S. 319,
327 (1989)). “A plausible but inconclusive inference from pleaded facts will survive a
motion to dismiss . . . .” Sepulveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d
25, 30 (1st Cir. 2010).
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DISCUSSION
Defendants contend that Plaintiff has not shown in her pleading that she suffered
a cognizable injury and that she therefore lacks standing. Specifically, Defendants
argue that even when you accept all of Plaintiffs factual allegations as true, she has not
suffered an injury in fact, because she has not alleged an invasion of a legally protected
interest which is both “concrete and particularized” as well as “actual or imminent, not
conjectural or hypothetical.” See Lujan, 504 U.S. at 560. For the reasons stated below,
the Court agrees, and grants Defendants’ Motion to Dismiss under Rule 12(b)(1) for
lack of standing without needing to reach questions pertaining to whether Plaintiff stated
a plausible claim for relief for each cause of action under Rule 12(b)(6).
Throughout her Complaint, Plaintiff alleges that the insurance coverage she
received as a member of the HealthExtras Benefits Program was “illegal” and “void.”
(ECF No. 1, passim.) The bases for this allegation are Plaintiff’s asserted facts, which
the Court assumes to be true, that the Policy was not issued to a valid blanket group
(see ECF No. 1 ¶¶ 57, 60-65, 84), and that Defendants failed to obtain approval for the
coverage from the South Carolina Department of Insurance in violation of applicable
state statutes (see id. ¶¶ 58-59, 90). The question is whether Plaintiff can be said to
have suffered any injury in the absence of any assertion(s): (1) that claims against the
Policy were improperly denied; (2) that knowledge of allegedly “harsh and confusing
exclusions” in the Policy caused any member to forego submitting a claim in the first
instance; or (3) that the Policy failed to meet the minimum standards of “total disability”
required by South Carolina insurance regulations.
Defendants’ main argument for dismissal is that even if Plaintiff could
12
demonstrate that the Policy fails to comply with the South Carolina Insurance Code in
the manner alleged in the Complaint, the Policy remains enforceable as a matter of law.
(ECF No. 13-1 at 5.) Thus, the argument goes, Plaintiff got precisely what she paid
for—enforceable disability insurance coverage—and has not suffered an actual,
concrete, particularized injury in fact. (Id. (citing Lujan, 504 U.S. at 560).)
South Carolina Code § 38-71-80, entitled “Construction of policy issued in
violation of chapter,” states:
A policy issued in violation of this chapter is held valid but must be
construed as provided in this chapter, and, when any provision in the
policy is in conflict with any provision of this chapter, the rights, duties, and
obligations of the insurer, the policyholder, and the beneficiary are
governed by the provisions of this chapter.
S.C. Code § 38-71-80. To the Court’s knowledge, section 38-71-80 has not been
construed by any South Carolina court, but its plain language establishes that an
accident or health insurance policy such as the one at issue in this case is held “valid”
and enforceable even where it does not comply with the requirements of Chapter 71 of
South Carolina’s Insurance Code (Title 38).
As indicated above, Plaintiff’s claims all flow from a core theory that the
permanent and total disability insurance coverage issued by Stonebridge did not comply
with certain provisions of Chapter 71 of the Code. Specifically, Plaintiff alleges that
Defendants violated section 38-71-720 (see ECF No. 1 ¶¶ 55, 58-59), which provides in
pertinent part:
(A) A policy or contract of group accident, group health, or group accident
and health insurance may not be issued or delivered in this State, nor may
any application, endorsement, or rider which becomes a part of the policy
be used, until a copy of the form has been filed with and approved by the
director or his designee except as exempted by the director or his
designee as permitted by Section 38-61-20.
13
S.C. Code § 38-71-720. Additionally, Plaintiff alleges that Defendants violated section
38-71-730 (see ECF No. 1 ¶¶ 56-57, 60-62, 64-66), which provides in pertinent part:
No policy of group health, group accident, or group accident and health
insurance may be delivered or issued for delivery in this State unless it
conforms to the following description:
(1) Except as provided in this item, the policy is issued to a trust or
to insure two or more persons who are associated in a common
group for purposes other than obtaining insurance.
S.C. Code § 38-71-730. Stated simply, Plaintiff’s entire case rests on the theory that
Defendants deliberately created an invalid “group” to which to issue the Policy so that
consumers’ interests would not be protected in the way the regulatory framework
envisions, and calculatingly misrepresented the nature of the group to state insurance
regulators or failed to apply for approval altogether in an intentional effort to avoid
scrutiny. (See ECF No. 1 ¶¶ 38-39, 41, 43, 52-72.)
As loathsome as this alleged course of conduct is, the Court is not permitted to
put a thumb on the scale of justice and manufacture standing for the Plaintiff out of a
misguided attempt to right what feels like a social wrong. Even viewing the allegations in
the light most favorable to Plaintiff, the face of her pleading reveals no injury, and the
way she has defined her putative class ensures that no policy holder with an actual
injury in fact would be part thereof. Plaintiff has specifically excluded from the proposed
class any policy holders with “[a]ctual identifiable claims for disability benefits that have
already arisen that may be payable under the terms of said disability insurance
policies.” (Id. ¶ 28(e).) Plaintiff has not alleged that but for unduly restrictive terms and
conditions in the Policy she would have tendered a claim for benefits, neither has she
included this concept more broadly as a theory of the case. Finally, Plaintiff has not
14
asserted that the Policy was “illegal” for any other reason than that it was “virtually
worthless” and “void under South Carolina law” for failure to comply with the state
statutory provisions detailed above. But section 38-71-80 says otherwise; indeed, it
mandates that insurance policies that would otherwise be voidable for lack of
compliance with Chapter 71 are to be held valid and construed in conformity with the
Chapter, thus vindicating the rights of the policyholder and beneficiary and enforcing the
duties and obligations of the insurer. See S.C. Code § 38-71-80.
One important distinction between Plaintiff’s pleading and the complaint in
Williams, is that here Plaintiff does not allege that her coverage violated South Carolina
Insurance Regulation 69-34(E)(9), which states that “total disability” may not be defined
within a policy more narrowly than the definition set forth in the Regulation. (Compare
ECF No. 1; with No. 6:14-cv-00870-BHH, ECF No. 1 ¶¶ 79-82.) Actually, Plaintiff
provides no policy definitions and no detail as to how its “harsh exclusions” allegedly
“make recovery under the [P]olicy virtually impossible” and render the Policy “virtually
worthless to purchasers.”3 (See ECF No. 1 ¶¶ 68, 74.) In this context, Plaintiff’s
assertions that Defendants had “no intent to ever pay disability claims” and instead had
a “specific intent to deny any disability claims made by victims of the HealthExtras
Scheme” (see id. ¶¶ 76-77, 83-84, 88, 91, 101, 135, 139) are entirely speculative.
Likewise, Plaintiff’s unsupported allusion to “many examples in the public record of
victims of the HealthExtras Scheme being denied disability benefits after suffering
catastrophic injuries” because of unspecified “harsh and confusing exclusions” (see id.
3
Specifically, Plaintiff does not plead the same hyper-restrictive set of qualifying injuries and definitions
that were present in the Williams case. (See No. 6:14-cv-00870-BHH, ECF No. 113 at 3-4.) Given these
notable differences in the pleadings, the Court is left wondering whether the policies at issue in the two
cases are actually the same, as Plaintiff boldly asserts. (See ECF No. 1 ¶ 1.) But the resolution of this
discrepancy is not material to the resolution of the instant Motion to Dismiss.
15
¶¶ 51, 78), while sounding horrific, in the absence of any well-pled connection to this
Policy, this Plaintiff, and this underwriter, does nothing to support Plaintiff’s bald
assertions about Defendants’ intent to deny claims. Plaintiff merely suggests that
because other unnamed individuals allegedly had their claims denied in bad faith, hers
would have been denied as well, if she had made one. “Such conjecture cannot replace
the type of factual allegations necessary to transform a speculative chain of possibilities
into a plausible allegation of concrete, actual injury in fact.” Campbell v. Nat’l Union Fire
Ins. Co. of Pittsburgh, PA, 130 F. Supp. 3d 236, 250 (D.D.C. 2015) (citing Clapper v.
Amnesty Int’l USA, 133 S.Ct. 1138, 1148 (2013) (finding no actual or imminent injury in
fact where the plaintiffs’ “theory of standing . . . relies on a highly attenuated chain of
possibilities,” and they “merely speculate and make assumptions about whether their
communications with their foreign contacts will be acquired”)); see Doe v. Blue Cross
Blue Shield of Md., Inc., 173 F. Supp. 2d 398 (D. Md. 2001) (holding that ERISA
plaintiffs’ claim that insurer would deny future claims based on a restrictive reading of
the parties’ contract did not constitute injury to support a breach of contract claim,
because contract law “does not recognize a cause of action based on the theory that
the market value of the contract itself has been diminished because one side may
breach it in the future”); Weaver v. Aetna Life Ins. Co., No. 3:08-CV-00037, 2008 WL
4833035, at *3 (D. Nev. Nov. 4, 2008) (dismissing unjust enrichment claim for lack of
standing where the plaintiff alleged that she “paid premiums for a nonexistent policy,”
because “one could not deem a policy nonexistent unless she were improperly denied
benefits” and “[a]ny other claim of a ‘nonexistent’ policy ventures into the metaphysical,
as one cannot know whether a policy exists until availing oneself of its benefits”), aff’d,
16
370 F. App’x 822 (9th Cir. 2010); Impress Commc’ns v. Unumprovident Corp., 335
F.Supp.2d 1053, 1059-61 (C.D. Cal. 2003) (holding that ERISA plaintiffs failed to
establish injury in fact to support a breach of contract claim for restitution and
disgorgement based on alleged diminution in value of the policy where their “allegation
that [the defendants’] administration of the plan might result in denial of future benefits is
purely speculative and does not suffice to constitute a breach of contract,” because until
the defendants failed to honor a valid claim “there can be no breach of contract”).
Having established that Plaintiff’s policy would have been held valid and
construed in accordance with Chapter 71 of South Carolina’s Insurance Code in the
event she had submitted a claim, the only remaining potential source of harm is that she
paid too much for the coverage that she received. However, as the Court noted in
Williams (see ECF No. 113 at 11), the fact that a party pays more for something than it
is worth does not in itself give rise to a cause of action. See e.g., Ryan v. Weiner, 610
A.2d 1377, 1381 (Del. Ch. 1992) (“It is [the] general rule, recited by courts for well over
a century, that the adequacy or fairness of the consideration that adduces a promise or
a transfer is not alone grounds for a court to refuse to enforce a promise or to give effect
to a transfer.”); F.D.I.C. v. Hartford Acc. & Indem. Co., 97 F.3d 1148, 1151 (8th Cir.
1996) (“A court must not impose its own concept of fairness under the guise of
construing a contract.”); see also Atkinson v. Belser, 255 S.E.2d 852, 855 (S.C. 1979)
(“Inadequate consideration is not a ground for rescission of a deed unless it is ‘so
palpably disproportioned to the real and market value of the property as to constitute an
unconscionable contract.’” (quoting Holly Hill Lumber Co., Inc. v. McCoy, 23 S.E.2d 372,
380 (S.C. 1942))); Jackson v. Carter, 121 S.E. 559, 563 (S.C. 1924) (“It is not the
17
business of courts to protect parties from the consequences of bad contracts, but to
protect them from the consequences of either legal or moral fraud and imposition.”
(internal quotation and citation omitted)).
The Court is fully aware that in Williams it denied the defendants’ motion to
dismiss, reasoning that even if the insurance policies there were enforceable, they were
still essentially worthless because they were, by their terms, so restrictive that virtually
no one would ever suffer a covered injury. (See No. 6:14-cv-00870-BHH, ECF No. 113
at 11.) Thus, the Court at that time could at least conceive of some harm to plaintiff
Williams and the putative class. Specifically, harm in the form of a type of transaction
cost that they should not have to bear as paying policy members who would, plausibly,
have to fight legal tooth-and-nail to recover for disabilities that otherwise clearly qualified
for coverage under the definitions provided in the South Carolina Insurance
Regulations, potentially even discouraging members with real disabilities from making a
claim at all. It was a stretch, but the Court believed that plaintiff Williams made enough
of a showing to establish standing and move that case beyond the motion to dismiss
stage. (See id. at 12 (“[T]his Court is uncomfortable concluding as a matter of law that
the plaintiff suffered no harm at this stage.”).) Here, however, the Court has no factual
basis upon which to conclude that the Policy is so restrictive because Plaintiff’s
complaint is utterly devoid of detail regarding the terms of the Policy and does not
include any allegation that the Policy attempts to circumvent the regulatory definition of
“total disability.” The Court will not speculate about the Policy terms and declines to
engage in Plaintiff’s proposed conjecture about Defendants’ prospective intent to deny
as yet unmaterialized claims. Unlike in Williams, the Court is comfortable concluding
18
that the face of Plaintiff’s pleading reveals no harm that is actual and imminent, as
opposed to conjectural and hypothetical, and that she therefore lacks standing. See
Friends of the Earth, 528 U.S. at 180-81.
Other courts confronting the same standing issue with respect to substantially
identical pleading schemes have reach analogous conclusions. In Giercyk v. Nat’l Union
Fire Ins. Co. of Pittsburgh, PA, et al., No. 2:13-cv-06272-MCA-MAH (D.N.J.), the district
court held that the plaintiffs lacked standing because the policies were enforceable
under New Jersey law and “any suggestion that [the defendants] would not honor [the
plaintiffs’] claims is mere speculation, and not a concrete harm.” 2015 WL 7871165, at
*5 (D.N.J. Dec. 4, 2015) (citing Maio v. Aetna Inc., No. 99-1969, 1999 WL 800315, at *2
(E.D. Pa. Sept. 29, 1999) aff’d, 221 F.3d 472 (3d Cir. 2000) (“The HMOs simply cannot
be ‘worth less’ unless something plaintiffs were promised was denied them.”)).4 In
4
In Maio, the Third Circuit affirmed the trial court’s dismissal of the insured parties’ RICO claims for lack
of standing, stating:
For the reasons that follow, we reject appellants’ theory that their complaint states valid
RICO claims based on the financial losses they purportedly sustained by enrolling in
Aetna’s “inferior” HMO plan in the absence of allegations to the effect that each appellant
suffered negative medical consequences resulting from Aetna’s enactment of the policies
and practices at issue. Stated another way, in the context of this case, we hold that
appellants cannot establish that they suffered a tangible economic harm compensable
under RICO unless they allege that health care they received under Aetna’s plan actually
was compromised or diminished as a result of Aetna’s management decisions challenged
in the complaint. It seems clear to us that unless appellants claim that Aetna failed to
provide sufficient health insurance coverage to the members of their HMO plan in the
sense that such individuals were denied medically necessary benefits, received
inadequate, inferior or delayed medical treatment, or even worse, suffered personal
injuries as a result of Aetna’s systemic policies and practices, there is no factual basis for
appellants’ conclusory allegation that they have been injured in their “property” because
the health insurance they actually received was inferior and therefore “worth less” than
what they paid for it. Of course, such losses would have to be alleged and proven on an
individual basis. Inasmuch as we hold that appellants have not alleged facts sufficient to
establish the fact of damage, i.e., appellants’ injury to property stemming from their
purchase of an “inferior” product, they have no cause of action under RICO.
Maio, 221 F.3d at 487-88 (emphasis added). The analogy to this case is clear. Plaintiff has no standing to
claim that the coverage she received was worth less than what she paid for it in the absence of any
showing that she was denied something that she was promised.
19
Petruzzo v. HealthExtras, Inc., et al., No. 5:12-cv-00113 (E.D.N.C.), the district court
reversed its previous order denying various motions to dismiss and held that because
North Carolina law required the insurance policies to be held valid, irrespective of
whether they had been issued to an improper “group” and whether the underwriter
intentionally failed to submit the appropriate documentation to the insurance
commissioner for approval, the plaintiffs suffered no injury in fact and lacked standing to
pursue any of their claims. 124 F. Supp. 3d 642, 651-52, 655-56 (E.D.N.C. 2015).5
Moreover, in Campbell v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, et al., No.
1:14-cv-00892-RC (D.D.C.), the district court found that the plaintiff lacked standing
because the D.C. Code section the defendants were alleged to have violated contained
language dictating that non-conforming insurance policies “shall be held valid but shall
be construed as provided in this section;”6 therefore, “to the extent that [the plaintiff]
asserts injury premised on payments for a policy that was invalid and unenforceable
due to violations of DC insurance laws, the argument clearly fails as a matter of law.”7
130 F. Supp. 3d 236, 250 (D.D.C. 2015). In Waiserman v. Nat’l Union Fire Ins. Co. of
5
The insurance statutes at issue in Petruzzo are perhaps the closest analogue to the statutes at issue in
the case sub judice. As here, N.C. Gen. Stat. § 58-51-75(a)(5) requires that “blanket accident and health
insurance policies” be issued only to a sufficiently large group of persons “formed for purposes other than
obtaining insurance.” As here, N.C. Gen. Stat. § 58-51-95 requires that such policies may not be issued
or delivered to persons within the state without first having been approved by the insurance
commissioner. And just like this case, N.C. Gen. Stat. § 58-50-15(b) provides in relevant part that “[a]
policy delivered or issued for delivery to any person in [North Carolina] in violation of Articles 50 through
55 of [Chapter 58, the Insurance Code] shall be held valid but shall be construed as provided in Articles
50 through 55 of this Chapter.” It was in this context that the Petruzzo court held that the “plaintiffs lack
Article III standing to prosecute their claims . . . . [The plaintiffs] have suffered neither a concrete nor an
imminent injury. The insurance program, consisting of both the Disability Benefit and Health Benefit, is
valid and enforceable under North Carolina law.” 124 F. Supp. 3d 642, 655.
6
D.C. Code § 31-4712(d)(2).
7
The Campbell court found that the plaintiff in that suit did have standing to assert certain claims on
grounds that she was charged premiums in excess of her contractual obligation (an allegation Plaintiff
does not make in this case) and on grounds that the defendants violated her statutory right to truthful
information about consumer goods and services under D.C. Code § 28-3901(c) (also not at issue in this
case). 130 F. Supp. 3d 236, 252. The defendants in Campbell did not challenge the adequacy of either of
those alleged injuries for lack of standing. Id.
20
Pittsburgh, PA, 2:14-cv-667 (C.D. Cal.), the district court rejected the plaintiff’s claims
that he had standing due to his purchase of an invalid and illusory insurance policy
because California law deemed such policies valid and enforceable even if the
defendants were not licensed to sell insurance and “created a sham trust to mask their
dealings;” the court dismissed all claims with prejudice for lack of an injury in fact.
Waiserman, No. 2:14-CV-667-SVW-CW, ECF No. 84 at 3-6 (C.D. Cal. Oct. 24, 2014).
In Williams v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, et al., No. 1:14-cv-00309MHS (N.D. Ga.), the Northern District of Georgia initially denied the defendants’ motion
to dismiss despite finding that the insurance policies were valid and enforceable,
because it concluded that the plaintiffs’ lack of injury in fact “[could not] be determined
as a matter of law from the face of the pleadings.” 2014 WL 4386463, at *3 (N.D. Ga.
Sept. 4, 2014). However, the court later granted summary judgment in the defendants’
favor, finding that the plaintiffs lacked standing because they “[could not] demonstrate a
cognizable injury based on the theory that the insurance policies were illegal or void”
and “[could not] establish a concrete injury based on the theory that the [d]efendants
never intended to pay out claims.” 2016 WL 739537, at *2 (N.D. Ga. Feb. 24, 2016).
Plaintiff responds to the standing challenge by first arguing that she has pled an
invasion into her statutorily created rights, and, therefore, has pled an injury in fact
sufficient for Article III standing. (See ECF No. 17 at 4.) She cites the U.S. Supreme
Court in Warth v. Seldin, 422 U.S. 490 (1975), for the premise that “[t]he actual or
threatened injury required by Art. III may exist solely by virtue of statutes creating legal
rights, the invasion of which creates standing.” Id. at 500. Plaintiff further argues that
courts have held that mere allegations of an actual, individualized invasion of statutory
21
rights satisfies the injury in fact requirement, regardless of the existence of economic
damages. (ECF No. 17 at 5 (citing Havens Realty Corp v. Coleman, 455 U.S. 363, 373374 (1982); Hammer v. Sam’s East, Inc., 754 F.3d 492, 498-99 (8th Cir. 2014); E.M. v.
New York City Dept. of Educ., 758 F.3d 442, 450 (2d Cir. 2014); Alston v. Countrywide
Financial Corp., 585 F.3d 753, 762-63 (3rd Cir. 2009); In re Carter, 553 F.3d 979, 989
(6th Cir. 2009); United Transp. Union Local Unions 385 and 77 v. Metro-North
Commuter Railroad Company, No. 94-CV-2979, 1995 WL 634906, *3 (S.D.N.Y. Oct. 30,
1995)).)
But Plaintiffs’ arguments in this regard have a glaring fault: there is no authority
to establish that the “statutory rights” which she claims Defendants violated are hers to
vindicate. The insurance statutes in which Plaintiff finds these purported rights are S.C.
Code §§ 38-71-10, 38-71-720, 38-71-730. (ECF No. 17 at 7.) Additionally, Plaintiff
claims that her right not to be the subject of unfair or deceptive trade practices under
S.C. Code § 39-5-10 (“SCUTPA”) has been infringed. (Id.) Putting aside the fact that
SCUTPA expressly exempts from its own scope unfair trade practices pertaining to the
business of insurance, see S.C. Code § 39-5-40(c),8 and further putting aside the fact
that SCUTPA expressly prohibits class actions, see S.C. Code § 39-5-140,9 it cannot be
disputed that the substance of Plaintiff’s SCUTPA claim is based entirely on her theory
that Defendants violated the itemized insurance statutes when they set up an unlawful
group and collected premiums on a policy that had not been approved (see ECF No. 1
8
Such unfair practices are instead regulated under the Insurance Trade Practices Act, S.C. Code § 3857-10, et seq.
9
Moreover, the South Carolina Supreme Court recently affirmed the trial court’s dismissal of a putative
SCUTPA claim because it was brought as part of a class action lawsuit. See Dema v. Tenet Physician
Servs.-Hilton Head, Inc., 678 S.E.2d 430, 434, (S.C. 2009) (“[B]ecause SCUTPA claims may not be
maintained in a class action law suit, the trial court properly dismissed Appellants’ claim.”).
22
¶¶ 104-110). Thus, the only source of the “statutory rights” that Plaintiff claims were
infringed, establishing standing even in the absence of economic damages, are S.C.
Code §§ 38-71-10, 38-71-720, 38-71-730. The Court is unconvinced by Plaintiff’s
arguments.
The insurance statutes that Plaintiff cites as the source of her “rights” are all part
of Chapter 71 (Accident and Health Insurance) of the South Carolina Insurance Code
(Title 38), which does not expressly confer a private right of action. Neither does
anything in the text of sections 38-71-10, 38-71-720, or 38-71-730 (which, inter alia,
entitle licensed accident and health insurers to issue and deliver insurance contracts,
require new policies to be approved by the Department of Insurance, and require group
accident policies to be issued only to groups associated for purposes other than
obtaining insurance), suggest to the Court that a private right of action is implied therein.
“Essentially, the standing question in [cases where an infringement of rights is alleged]
is whether the constitutional or statutory provision on which the claim rests properly can
be understood as granting persons in the plaintiff’s position a right to judicial relief.”
Warth, 422 U.S. at 500. The Court does not believe that the insurance statutes at issue
here are properly understood in this way, and, in the absence of economic damages, it
appears that Plaintiff has no “statutory rights” that she can properly vindicate.
None of the cases that Plaintiff cites remedy this flaw in her argument. In almost
all of the cases Plaintiff cites to support the principle that merely alleging infringement of
a statutory right, without accompanying economic damages, is enough to establish
standing, the underlying statute expressly conferred a private right of action. See
Havens Realty Corp v. Coleman, 455 U.S. 363 (1982) (claims brought under the Fair
23
Housing Act, which confers a private right of action); Hammer v. Sam’s East, Inc., 754
F.3d 492 (8th Cir. 2014) (claims brought under the Fair and Accurate Credit
Transactions Act, which confers a private right of action); Alston v. Countrywide
Financial Corp., 585 F.3d 753 (3rd Cir. 2009) (claims brought under the Real Estate
Settlement Procedures Act, which confers a private right of action); In re Carter, 553
F.3d 979 (6th Cir. 2009) (same). Two of the cases cited by Plaintiff found that the
underlying statute was fairly understood as granting persons in the plaintiffs’ position a
right to judicial relief. See E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d
Cir. 2014) (noting that the Individuals with Disabilities Education Act under which the
claims were brought invited judicial review and created education mandates enforceable
by individual claimants through the federal courts); United Transp. Union Local Unions
385 and 77 v. Metro-North Commuter Railroad Company, No. 94-CV-2979, 1995 WL
634906, *2-3 (S.D.N.Y. Oct. 30, 1995) (finding that section 60 of the Federal Employers’
Labor Act was fairly understood as conferring on union members a right to voluntarily
furnish information relevant to work-related accidents and injuries, which gave them
individual standing to sue to vindicate that right, and by derivation, gave the Union
standing to sue on their collective behalf). The remaining cases cited by Plaintiff are
inapposite for various reasons. See Long Term Care Partners, LLC v. U.S., 516 F.3d
225, 231-238 (4th Cir. 2008) (declining to decide the standing issue and instead finding
judicial review improper due to the absence of “final agency action” under the
Administrative Procedure Act); Sun Life Assur. Co. of Canada v. Moran, No. CV-080629-PHX-GMS, 2009 WL 2450443, at *5 (D. Ariz. Aug. 11, 2009) (finding that plaintiff
life insurance company suffered an injury in fact sufficient to confer standing under a
24
state statute prohibiting “wager policies” even in the absence of any claim because the
policies in question were issued to and/or under the direction of a party possessing no
insurable interest); U.S. ex rel. Yankton Sioux Tribe v. Gambler’s Supply, Inc., 925 F.
Supp. 658, 660 (D.S.D. 1996) (stating in plaintiffs qui tam action to recover monies paid
under contracts relating to the management of a Native American casino because they
were never approved by the Secretary of the Interior, “[s]tanding has not been argued in
this case because, in addition to the standing granted by statute, [the plaintiffs] in both
cases have personal stakes in a suit brought to recoup monies paid by a tribe under
void contracts” and both “enrolled member[s] of the [Tribe], and the Tribe itself, share a
legally enforceable right to a portion of the profits from the use of the Tribe’s land”
(emphasis added)). Accordingly, Plaintiff’s arguments for standing in the absence of any
ascertainable damages are unavailing.
Of course, none of this is to say that insurance companies and their business
partners can simply violate South Carolina insurance laws with impunity. Rather, the
insurance code specifically vests the Director of the Department of Insurance, or his
designee, with the duty to “see that all laws of this State governing insurers or relating to
the business of insurance are faithfully executed and make regulations to carry out this
title and all other insurance laws of this State, the enforcement or administration of
which is not otherwise specifically provided for.” S.C. Code § 38-3-110(2). Moreover,
the Director also has express duties to “report to the Attorney General or other
appropriate law enforcement officials criminal violations of the laws relative to the
business of insurance or the provisions of this title which he considers necessary to
report” and to “institute civil actions, either through his office or through the Attorney
25
General, relative to the business of insurance or the provisions of this title which he
considers necessary to institute.” S.C. Code §§ 38-3-110(3) and (4); see also S.C. Code
§ 38-2-10 (detailing administrative penalties that may be imposed for violation of state
insurance laws); §§ 38-13-10 through 38-13-30 (detailing the powers of the Director to
make examination of insurers, persons, and businesses, considering their compliance
with relevant South Carolina laws and regulations, to determine when regulatory action
is appropriate, and to initiate proceedings or actions provided by law accordingly).
In summary, all of Plaintiff’s causes of action are contingent on three alleged
sources of injury: (1) that the Policy was “illegal” and void under South Carolina law, (2)
that the Policy was “virtually worthless” because of “harsh and confusing exclusions”
and because Defendants had no intent to pay claims, and (3) that the Policy was sold
through an illegal scheme, where most of the premiums collected enriched HealthExtras
and represented no benefit to the policy members at all. (See ECF No. 1 ¶¶ 84.) As
thoroughly detailed above, these allegations are either wrong as a matter of law (given
the application of S.C. Code § 38-71-80) or entirely speculative, and the face of
Plaintiff’s Complaint reveals no concrete, actual or imminent harm. Because Plaintiff’s
lack of standing applies to all of her theories of liability, the Court sees no need to
conduct an independent analysis of each cause of action for failure to state a claim
under Rule 12(b)(6). To do so would be extraneous effort. Accordingly, the Motion to
Dismiss is granted and this matter is dismissed with prejudice.
CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss (ECF No. 13) is
GRANTED and the Clerk of Court is directed to close this action accordingly.
26
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
September 1, 2016
Greenville, South Carolina
27
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